The Fact-Free Zone

Earlier this week, a reporter from The Bill O'Reilly Show confronted a Planned Parenthood spokesman about videotapes that reveal the organization "excusing and covering up underage sex trafficking." Bill O'Reilly himself reminded his audience of the requirement to report abuse of minors. He failed to mention, however, that that's exactly what Planned Parenthood did, two weeks ago, when it first received mysterious, surreptitiously videotaped visits from men and women posing as pimps and prostitutes. Fox's accusations completely ignored the facts.

The videos, released by the extremist anti-abortion group Live Action, purported to catch the organization covering up a sex-trafficking operation; Fox News was the only large media outlet to take these edited tapes at face value. Planned Parenthood is now fending off investigations in the states where the videos were taken.

Of course, this is not the first organization to face a calculated smear campaign from the right. ACORN, the community-organizing group, lost federal funding and went bankrupt due to the negative publicity from a similar video campaign. Shirley Sherrod got fired from the U.S. Department of Agriculture after right-wing blogger Andrew Breitbart published an edited video making her appear racist, when in fact the point of the speech was just the opposite. These episodes follow a predictable pattern: After the faux scandal has generated a good number of click-throughs and the myth has been debunked and defended, the media move on, leaving the unfortunate subject's reputation tarnished, or worse.

If these organizations were movie stars, the solution would be simple: sue.

But it turns out that going after media outlets that distort the news -- even when individuals get fired or lose money because of what's (mis-)reported -- is harder than you'd think. Because of the important role the press is supposed to play in democracy, the courts have made it virtually impossible for those misrepresented in the press to win a defamation lawsuit. On one hand, this deference has created a free and vibrant press, uninhibited by fear of retaliation. But there's a flip side: With no accountability, false stories crowd out the truth, end up misleading the public, and leave victims without recourse. Freedom of the press, it turns out, often amounts to the freedom to deceive. Given that outright partisanship increasingly crosses the line into pure falsehood, shouldn't it be easier to sue?

"There's a trade-off between protection of reputation and protection of freedom of the press," says David A. Anderson, an expert in defamation law at the University of Texas Law School. "Every system makes a choice, and ours favors freedom of speech more than any other system in the world."

The liberal press protections we see today are largely based on the 1964 decision New York Times, Co. v. Sullivan, in which the Supreme Court established that to win a defamation suit against the press, you have to prove they knowingly promoted false information or recklessly disregarded whether something was true. This standard -- called "actual malice" -- has proved virtually impossible to satisfy, resulting in a paltry number of libel cases against news organizations; most years, the number of victims who prevail in a libel case against the press can be counted on one hand.

Current libel law shows a deep faith in people to decipher which information is true and which is not. The Supreme Court has defended the "actual malice" standard by claiming that false views aren't necessarily bad. The victim of defamation can counter lies about him or herself by putting forth their own view, and the truth will ultimately prevail in the "marketplace of ideas" (the phrase, coined in 1919 by Justice Oliver Wendell Holmes Jr., hints at the assumption that, as in economics, ideas are naturally self-correcting). But this doesn't take into account "market failures."

"There's an old saying that the truth never catches up to the lie," says Vincent Blasi, a professor of civil liberties at Columbia Law School who, like many on both sides of the aisle, is skeptical of the chilling effect an increase in litigation might have on the press. Still, he says, the metaphor of the marketplace is "too simplistic because we all seem to be in our own little world." The watchdog group Media Matters points out false statements in Fox News every day, but few Fox viewers will ever see the corrections, much less believe them; among Iowa voters who took part in a small focus group during O'Reilly's interview of President Barack Obama on Sunday, about half in attendance believed Obama was a Muslim.

If the law itself is a serious barrier to receiving compensation for the media's wrongdoing, the excessive cost of bringing a suit is an even greater deterrent. Big media outlets typically have deep pockets, often backed up by insurance policies, and because libel cases are so hard to win, there are few lawyers who will even take them. Not only does defamation law favor the defendant, it's set up so that even if a plaintiff wins a case, they rarely get any significant payment in damages.

The result, according to Anderson, is that "we've adapted to the balance -- or rather, imbalance -- between reputation and free speech." Political candidates, for example, expect to be lied about during a campaign. John McCain lost the 2000 Republican primary because of rumors of a black love child spread by George W. Bush's campaign; four years later, John Kerry was largely derailed by a false ad campaign about his military service. Lying is a normal part of American politics.

To be clear, the problem isn't about the press being partisan per se; there's a difference between spin and total fabrication. Many outlets, including the The American Prospect, have a point of view on political issues but still rigorously fact-check and correct errors. It's one thing to use facts -- and even to combine them with a little vitriol -- to make a point. But the system should reject outright lies.

There are ways of changing defamation law to discourage outright misinformation while maintaining the freedom of the press. Anderson is one among many legal experts who believe the "actual malice" standard is too strict and suggests replacing it with a journalistic code of ethics enforced by law. Rather than proving that Fox News willfully smeared Planned Parenthood, the question would become whether the organization followed the standard of ethics under which a responsible press operates. Australia follows such a rubric, Anderson says, and it works to limit the number of "bold-faced lies."

David L. Hudson Jr. of the First Amendment Center said he thinks the likelihood of the Court revisiting defamation law is low; the Supreme Court hasn't heard a serious defamation case in nearly 20 years, Anderson says. That indicates they are satisfied with the current law. But courts could also re-evaluate what's called the "substantial truth doctrine," which allows the media to make a statement that is technically false as long as it gets at the gist of a situation. Last week, for example, Fox's Laura Ingraham stated that Planned Parenthood makes "all their money from abortion." Factually, that's not true; it's a talking point that paints Planned Parenthood as an abortion factory when it actually accounts for just 3 percent of their services. But a court today could decide that while the amount was grossly exaggerated, Fox got the substance -- that Planned Parenthood performs abortions and receives payment for them -- correct.

If the Court were to recalibrate the substantial-truth rule, the justice system could potentially become more friendly to sanctioning such misrepresentations.

In general, the increased threat of litigation would make the press more careful. John W. Dean, former counsel to President Richard Nixon and outspoken critic of the modern conservative movement, says that the current state of defamation law is part of what makes the Fox noise machine possible. He suggests establishing a fund or having lawyers take on cases pro bono to allow vulnerable victims the opportunity to sue media giants for defaming them.

The current misinformation campaign against Planned Parenthood, both on the ground and in Congress, is a reminder of how the First Amendment not only protects freedom of the press but enables it to spread lies about a political opponent as well. It's a "good example of the choice we -- the courts -- have made," Anderson says, "of the price we pay for freedom of speech." It's worth asking whether this is the way it should really be.